U.S. v. Lopez

• Decision Date: 16 July 2008
• Docket Number: No. 07-35389.,07-35389.
• Citation: 534 F.3d 1027
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gabriele Elizabeth LOPEZ, aka Gabriele Elizabeth Koenig, Nee Konig, Defendant-Appellant.

534 F.3d 1027

UNITED STATES of America, Plaintiff-Appellee, v. Gabriele Elizabeth LOPEZ, aka Gabriele Elizabeth Koenig, Nee Konig, Defendant-Appellant.

No. 07-35389.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 8, 2008.

Filed July 16, 2008.

Amended July 29, 2008.

James A. McDevitt, United States Attorney; Stephanie Whitaker (argued), Assistant United States Attorney, Spokane, WA, for the plaintiff-appellee.

Beth Mary Bollinger, Spokane, WA, for the defendant-appellant.

Appeal from the United States District Court for the Eastern District of Washington; Justin L. Quackenbush, District Judge, Presiding. D.C. Nos. CV-05-00084-JLQ, CR-02-00127-JLQ.

Before: RAYMOND C. FISHER, RONALD M. GOULD and SANDRA S. IKUTA, Circuit Judges.

ORDER AMENDING OPINION AND AMENDED OPINION

ORDER

The opinion filed July 16, 2008, is amended as follows:

At Slip Op. 8785, line 34: Change "Counsel for one of the co-defendants told ..." to "Frank Cikutovich, counsel for one of the co-defendants, told ...".

At Slip Op. 8786, line 24: Change "Bailey to Agent Rice or ..." to "Bailey to Rice or ...".

At Slip Op. 8792 [4], line 1: Amend to read "In this case, because Lopez cannot carry the lesser burden of establishing a Brady violation that would entitle Lopez to habeas relief, had this been Lopez's first habeas petition, she cannot carry the greater burden ...".

At Slip Op. 8794 [6], line 4: Amend to read "... Lopez has not established the existence of such a Brady violation that warrants habeas relief, had this been Lopez's first habeas petition.".

OPINION

FISHER, Circuit Judge:

Gabriele Lopez, a.k.a. Gabriele Koenig ("Lopez"), filed a federal habeas corpus motion in the district court seeking to vacate her drug conviction because the government withheld until long after her trial potentially damaging credibility information about one of the government's principal witnesses, in violation of the government's disclosure obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The district court, rejecting the government's argument that the court lacked jurisdiction to hear the motion because it was barred by 28 U.S.C. § 2255 as "second or successive," denied the motion on its merits. The appeal in this case thus presents a troublesome circumstance involving the interplay between the government's failure to make a timely disclosure of Brady information and the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. §§ 2244, 2255, which, in the interest of finality, impose significant burdens on defendants who try to raise claims that were not originally raised on their direct appeal or first habeas motion.¹

For the reasons that follow, we hold that Lopez's motion was a second or successive habeas motion that, under § 2255(h), required certification from this court before it could be heard by the district court. Therefore, the district court erred in reaching the merits because it lacked jurisdiction. Even though under the circumstances here we construe Lopez's appeal as a belated request to us for authorization to file her motion, we must deny certification because the newly discovered evidence would not be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found her guilty of the offense. See § 2255(h)(1). We also conclude that the government's conduct, albeit troublesome, was not "so grossly shocking and so outrageous as to violate the universal sense of justice," United States v. Restrepo, 930 F.2d 705, 712 (9th Cir.1991) (internal quotation marks and citations omitted), that her conviction must be vacated and the indictment dismissed.

I.

Lopez was indicted in May 2002 on several charges of possession of cocaine base with intent to distribute. She was tried together with Elvis Singh and James Evans, with whom she lived in a house in Spokane, Washington. Two informants, David Palmer ("Palmer")—who emerges as the central figure in this appeal—and Janie Arambula ("Arambula"), testified on behalf of the government.

Palmer testified about an occasion on April 9, 2002, when he went to the defendants' house in Spokane to buy crack cocaine with two other participants. The jury heard Palmer's recorded conversations with these participants regarding their drug purchase inside the house. Palmer testified that he did not see Lopez on that occasion and had never met her at any other time. Defense counsel cross-examined Palmer about a variety of issues, such as whether he had used or presently used drugs and the payment for his work as an informant.

During the trial, a case agent testified that he had taken Palmer's Drug Enforcement Administration ("DEA") file to the United States Attorney's Office and that Assistant United States Attorney Tom Rice ("Rice") had spoken with Agent Shelby Smith ("Agent Smith") of the local DEA. The case agent further testified that Rice had written a note to one of the government's trial attorneys that there was no Brady material in the file. Frank Cikutovich, counsel for one of the co-defendants, told the court he was concerned about whether the government had disclosed all Brady material about Palmer and requested that the court review Palmer's file for Brady material. The court declined, saying it was the responsibility of the United States Attorney's Office, not the court, to do so.

As Lopez learned several years later, on June 6, 2002 — two months before her trial — Lieutenant Chandler Bailey ("Lt. Bailey") of the Spokane Police Department Drug Task Force had called Agent Smith to tell him that the City and County of Spokane would no longer be using Palmer as a confidential source in controlled drug buys because he was "unreliable." Lt. Bailey had learned that Palmer had been sexually involved with at least one woman who was the subject of a drug investigation conducted by the Spokane Police Department, that some officers believed Palmer had used investigative funds to buy services from prostitutes and that Palmer usually sought out women when he chose his own targets for investigation. Although Lt. Bailey had prepared a memorandum discussing the allegations that Palmer was "unreliable" (the "Bailey memorandum"), he had not sent a copy to Agent Smith and the memorandum was not in the file at the time Rice inspected it. There is no evidence that Agent Smith relayed the information from the conversation he had with Lt. Bailey to Rice or Assistant United States Attorney Earl Hicks, who was then in charge of the prosecution of Lopez and her co-defendants. Nor is there evidence that the government attorneys involved in the cases asked the pertinent government agents whether they had any personal knowledge concerning the credibility of the government witnesses, or any other Brady information, as opposed to merely looking in Palmer's file.

The defense completed its cross-examination of Palmer without being informed that the City and County of Spokane were no longer using Palmer because he was considered unreliable. Palmer's testimony did not directly inculpate Lopez in any drug transaction, and at the close of evidence the court instructed the jury that the testimony of an informant should be examined with greater care than the testimony of an unpaid witness.

Another informant, Arambula, testified about a wire-recorded controlled purchase of cocaine base she made on April 18, 2002 from Lopez's co-defendant Singh, in which Lopez participated. This was not the controlled purchase about which Palmer testified. Arambula's testimony was that she placed a consensually monitored and recorded telephone call to Singh to arrange to purchase a half ounce of crack cocaine. When she arrived at the house, Lopez answered the door and led her to a bedroom where Singh was on the bed. Arambula asked to buy a half ounce of crack cocaine, she and Singh discussed the price, and then Lopez retrieved and weighed the crack cocaine for Arambula. Lopez gave her the crack cocaine, and Arambula then laid the money on Singh's chest. Agent Beaumont testified about this transaction, explaining that he was with Arambula during her telephone call with Singh and that he conducted surveillance during the controlled purchase. The tape of the telephone call and the transmitter wire recording of the controlled buy were admitted into evidence and played for the jury.

The jury found the defendants guilty of the cocaine base charges. Specifically, the jury found Lopez guilty of two counts of violation of 21 U.S.C. § 841(a)(1) (Count 5 — knowingly and unlawfully distributing a mixture or substance containing more than five grams of cocaine base; and Count 6— knowingly and unlawfully possessing with intent to distribute a mixture or substance containing more than 50 grams of cocaine base).

The district court acquitted Lopez on Count 6, finding insufficient evidence. It found, however, there was clear and convincing evidence to support the jury verdict on Count 5. The court sentenced Lopez to the mandatory minimum term of five years. On Lopez's direct appeal, we affirmed her conviction and sentence in an unpublished disposition. See United States v. Singh, 94 Fed.Appx. 511, 514 (9th Cir.2004).

In March 2005, Lopez filed her first motion to set aside, vacate or correct her sentence under § 2255, claiming ineffective assistance of counsel, a violation of her Sixth Amendment right to an impartial jury, a due process violation and a sentence in violation of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The district court denied the motion.

Then, in 2006, the new Brady information regarding Palmer came to light in a different case, United States v. Heit, E.D. Wash. No. CR-05-6028-EFS, in which Palmer was an informant-witness for the government. Upon learning about the Bailey memorandum and its negative information about Palmer, the government's counsel in Heit disclosed it to the...